Troy Simon Clayton v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00023-CR
________________

TROY SIMON CLAYTON, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F18-29699
________________________________________________________________________

MEMORANDUM OPINION

Troy Simon Clayton pled guilty to the third-degree felony offense of violating

a family protective order, and the trial court deferred adjudication and placed him

on community supervision. See Tex. Penal Code Ann. § 25.07. The trial court later

revoked Clayton’s community supervision and adjudicated him guilty, then

sentenced him to eight years of confinement. Clayton appeals his conviction, and in

two issues, he contends: (1) the evidence was insufficient to prove that appellant

committed the offense of aggravated assault with a deadly weapon as alleged in

1
Count One of the Motion to Revoke Unadjudicated Probation; and (2) the trial court

abused its discretion in revoking his community supervision absent sufficient proof

that he violated any condition of probation as alleged in the State’s Motion to Revoke

Unadjudicated Probation. We hold that (1) the evidence was sufficient to show by a

preponderance of the evidence that Clayton committed the offense of aggravated

assault with a deadly weapon, and (2) the trial court did not abuse its discretion in

revoking Clayton’s community supervision where the evidence was sufficient to

show that he violated a condition of his community supervision. We will affirm the

trial court’s judgment as modified for the reasons discussed below.

Background1

In 2018, Clayton was indicted for the third-degree felony offense of engaging

in conduct toward “Denise” that violated a family protective order issued by a

Jefferson County District Court. 2 See id. Following a guilty plea, the trial court

deferred adjudicating Clayton and placed him on community supervision for ten

years. Among other things, the first condition of Clayton’s community supervision

1
We limit our discussion of the background to those facts necessary to the
appeal’s resolution. Tex. R. App. P. 37.1.
2
We refer to the crime victim by a pseudonym to protect her privacy. See Tex.
Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness
and with respect for the victim’s dignity and privacy throughout the criminal justice
process”).
2
included that he “[c]ommit no offense against the laws of this State or of any other

state or of the United States.”

In May of 2023, Clayton was arrested for committing aggravated assault with

a deadly weapon against Denise, the same individual covered by the original

protective order. The State filed a Motion to Revoke alleging multiple violations,

including, as applicable here:

1). The said Troy Clayton committed the offense of Aggravated Assault
with a Deadly Weapon on or about May 21, 2023, in the Jefferson
County, Texas, the said Troy Clayton did then and there intentionally
or knowingly threaten [Denise], a member of the Defendant’s family,
with imminent bodily injury and did then and there use or exhibit a
deadly weapon, to-wit: a firearm, during the commission of said assault,
against the peace and dignity of the State, in violation of Condition (1)
of Defendant’s Deferred Adjudication order.

Clayton pleaded “not true” to the alleged violations. During an evidentiary hearing,

multiple witnesses testified, including the officer called to the scene of the May 2023

assault, Denise, Clayton’s probation officer, and Clayton.

At the hearing, Jasmine Dumas testified that she is a peace officer with the

Port Arthur Police Department. Dumas said that on May 21, 2023, she was

dispatched to the Southeast Texas Medical Center “in reference to a criminal

mischief.” When she arrived, she observed Denise alone “standing by her car [in]

tears, visibly upset.” She agreed that Denise appeared in fear for her life. Denise told

Dumas, “He is going to kill me.” Based on that statement, Dumas began

investigating. Dumas explained that Denise’s driver’s side window was shattered,
3
and photographs of the vehicle’s damaged window were admitted during the

hearing. The photographs showed the shattered window with pieces of glass inside.

According to Dumas, Denise relayed to her in detail that someone had done

that to her. Dumas testified that this would not happen to a vehicle naturally and

“[s]ome sort of force” caused it. She indicated it could have been hit with a fist, a

gun, or other objects. Denise told her that “[a] butt of a firearm[]” caused the damage,

so Dumas searched for the point of force to the window. Dumas located shattered

glass inside the car, which confirmed what Denise told her. On cross-examination,

Dumas agreed that many things could break the automobile window, including a fist.

She contacted dispatch and confirmed that Denise had a protective order on

file, which protected her from Clayton. That said, Dumas did not know if the

protective order was still enforceable when this incident occurred. Dumas decided

to file charges on Clayton for aggravated assault with a deadly weapon based on

what Denise told her and how the weapon was used.

Denise also testified at the hearing. She said that she works as a pharmacy

technician at “The Medical Center Southeast Texas” and has worked there about two

years. In May 2023, she was married to Clayton, and she identified him in court.

Denise explained that they married in April of 2018 but had been together on and

off for about fifteen years. They separated before this incident and remained

separated at the time of the hearing, but Denise initiated divorce proceedings. She

4
also testified that she was the complainant for the offense of violating the protective

order that led to Clayton’s probation. She indicated that she had a protective order

against Clayton in the past, and he violated that protective order, which led to the

felony charges. Denise testified that Clayton was accused of assaulting her multiple

times, but she did not follow through with the charges in the past. She believed he

would not do it again and “that it would get better[;]” instead, it is worse. Denise

relayed that she is concerned Clayton will get out, and it will happen again. He tried

to communicate with her while in custody, and she outlined all the attempts he made

since his arrest in May of 2023.

Denise explained that on the morning of May 21, 2023, before she went to

work, she and Clayton argued. The argument was not over, so she stated that Clayton

“came to my job to finish the argument.” She left for lunch, and within ten or fifteen

seconds after she returned to the parking lot, Clayton pulled in on her passenger side

and parked next to her. She described him getting out of his car and tapping on her

passenger window. She turned her radio up because she did not want to hear what

he was saying and wanted him to leave, because she was at work.

According to Denise, Clayton did not leave, and he became frustrated when

she turned up the music. She said that “he pops the trunk and goes inside[,]” then

walked to the driver’s side but she did not know what he was getting. Denise testified

that Clayton broke the window of her car as she sat inside. She said that Clayton

5
broke the window “[w]ith a gun bottom that he got out of . . . his trunk.” She testified

that Clayton began “banging through the window like to get through the window to

me,” and she saw the gun “[c]oming back and forth, back and forth until it

shattered[.]” Denise was “positive” Clayton had a gun and indicated she saw him

rack the gun. She testified that she was afraid and thought Clayton was trying to kill

her. She immediately put her car in gear and drove into the median, and that is when

Clayton left. Denise indicated she felt threatened and was concerned about imminent

bodily injury. She told the officer she believed the only reason she was alive was

because Clayton could not get the gun to work correctly.

Alex Hill, a community supervision officer for Jefferson County who

supervised Clayton, also testified. Hill supervised Clayton for Cause No. 18-29699,

violation of a protective order. Hill testified regarding Clayton’s other violations. He

noted that he has failed to provide verification that he has completed the required

service hours. Hill testified that Clayton also failed to complete the required moral

reconation therapy program, that would help with coping mechanisms and anger,

which would hopefully avoid scenarios like the one with Denise.

Clayton testified that he was placed on probation in 2019 for the offense of

violating a protective order, and the protective order has since expired. According to

Clayton, he and Denise married “during the protective order in April 2018.” He said

they stopped living together on May 21, when this incident occurred.

6
He explained that they had recently been evicted from their apartment, and

the disagreement on the morning of May 21 was about money. Clayton claimed

money was missing he could not account for, and he wanted answers from Denise.

About 11 a.m., Clayton knew that Denise would be on her lunch break, so he went

to her regular parking spot and knocked on the window. He admitted he was angry

at the time, and when he asked to talk about the money, Denise rolled her eyes,

turned up the music on her phone, and started texting. Clayton testified that after

Denise complained that he came to her job, he was upset. He admitted he hit the

window with his fist one time, and it shattered. Clayton denied that he retrieved a

gun from his car. According to Clayton, after the incident, he called police and asked

them to do a welfare check. He testified that he gave police the same version of

events he provided at the hearing and admitted he broke the window.

Clayton testified that Denise had to seek a protective order against him, which

resulted in him being placed on felony probation for violating the protective order.

He understood he was not supposed to have contact with the victim, but he testified

he contacted her while in custody knowing it violated court rules.

Clayton outlined the steps he took to comply with the other community

supervision terms. He also testified that he and Denise were in contact since this

happened and went on a trip to Las Vegas in June of 2023 without court approval.

State’s Exhibit 5 was also admitted into evidence, which included, among other

7
things, the motion to revoke probation, administrative hearings, and a motion to

dismiss an earlier motion to revoke.

After the hearing, the trial court found that Allegation 1 of the Motion to

Revoke was “proven true” “by a preponderance of the evidence or greater”

regardless of whether it was “assault with a deadly weapon, namely, a firearm or the

lesser included assault, . . . but it’s nonetheless assaultive behavior.” The trial court

stated that it believed Denise’s version of events, and “at the very least” Clayton

committed the lesser included offense of assault under Penal Code section

22.01(a)(2) while on probation for violation of a protective order. The trial court also

noted that whether it was Clayton’s fist, the firearm, or some other part of a gun, “a

deadly weapon was used because anything capable of breaking the glass like that is

certainly capable of causing death or serious bodily injury.” The trial court granted

the Motion to Revoke Unadjudicated Probation, found him guilty, and sentenced

him to eight years of confinement.

Initial Matter: Error Preservation

Clayton focuses on the use of his hand versus the firearm during the assault

and contends the evidence did not constitute “sufficient proof that a deadly weapon

was used or exhibited as alleged in Count One.” To the extent he contends there was

a due process violation because there was a variance between the Motion to Revoke

and the proof at trial, we conclude he has failed to preserve such a complaint for our

8
review. To preserve a complaint for our review, a party must present the trial court

with a timely request, objection, or motion that states the specific grounds for the

desired ruling if they are not apparent from the context of the request, objection, or

motion. See Tex. R. App. P. 33.1(a)(1).

A defendant must raise deficiencies in a motion to revoke at or before trial,

and failure to object at that time forfeits the sufficiency of the notice provided by the

motion on appeal. Labelle v. State, 692 S.W.2d 102, 105 & n.2 (Tex. Crim. App.

1985) (noting a line of cases holds that a motion to revoke’s allegations do not

require the same particularity as required in an indictment or information; rather,

“the motion to revoke must simply give fair notice of the violation involved in order

to comport with minimum due process”); Hunt v. State, 5 S.W.3d 833, 835 (Tex.

App.—Amarillo 1999, pet. ref’d) (holding appellant forfeited complaints about

deficiencies in the motion to revoke when he failed to raise them at or before trial);

see also Armstrong v. State, No. 02-13-00243-CR, 2014 WL 1324423, at *2 (Tex.

App.—Fort Worth Apr. 3, 2014, no pet.) (per curiam) (mem. op., not designated for

publication).

Clayton failed to complain about a variance in the Motion to Revoke or a due

process violation in the trial court. Thus, he has failed to preserve any such complaint

for our review. See Tex. R. App. P. 33.1(a); Labelle, 692 S.W.2d at 105 & n.2; Hunt,

5 S.W.3d at 835; see also Armstrong, 2014 WL 1324423, at *2.

9
Motion to Revoke: Standard of Review

We review a trial court’s order adjudicating guilt for an abuse of discretion.

See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State,

665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a hearing to revoke deferred

adjudication, the State must only prove the violation of a condition of probation by

a preponderance of the evidence. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex.

Crim. App. 2013); Rickels, 202 S.W.3d at 763–64. The evidence meets this standard

when the greater weight of the credible evidence creates a reasonable belief that the

defendant violated a condition of his community supervision. Rickels, 202 S.W.3d

at 763–64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App.

1974)). We examine the evidence in the light most favorable to the trial court’s

order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).

When determining whether the allegations in the motion to revoke are true,

the trial court is the sole trier of facts, the judge of the witnesses’ credibility, and the

arbiter of the weight to give the testimony. Taylor v. State, 604 S.W.2d 175, 179

(Tex. Crim. App. 1980); Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). Reconciling conflicts in the evidence is within

the trial court’s province, “and such conflicts will not call for reversal if there was

enough credible testimony to support the conviction.” Shah v. State, 403 S.W.3d 29,

34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (citation omitted). The State

10
need only establish one sufficient ground for revocation to support the trial court’s

order revoking community supervision. See Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. 1980); see also Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim.

App. 2009) (quoting Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App.

1978)) (other citations omitted).

Applicable Law: Aggravated Assault

A person commits aggravated assault with a deadly weapon when he

intentionally or knowingly threatens another with imminent bodily injury, while

using or exhibiting a deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a)(2),

22.02(a)(2). “Deadly weapon” means a firearm or anything that in the manner of its

use or intended use is capable of causing death or serious bodily injury. Id. §

1.07(a)(17)(A), (B). “Serious bodily injury” is “bodily injury that creates a

substantial risk of death or that causes death, serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.” Id. §

1.07(a)(46). “The gravamen of aggravated assault, therefore, is either causing bodily

injury or threatening imminent bodily injury, depending on which theory has been

pleaded in the charging instrument.” Shelby v. State, 448 S.W.3d 431, 438 (Tex.

Crim. App. 2014).

11
Analysis

In two issues, Clayton contends: (1) the evidence was insufficient to prove

that appellant committed the offense of aggravated assault with a deadly weapon as

alleged in Count One of the Motion to Revoke Unadjudicated Probation; and (2) the

trial court abused its discretion in revoking his community supervision absent

sufficient proof that he violated any condition of probation as alleged in the State’s

Motion to Revoke Unadjudicated Probation. In his brief, Clayton addresses these

issues together, as do we.

Here, the State alleged that Clayton violated the first condition of his

community supervision, which was “[c]ommit no offense against the laws of this

State or of any other state or of the United States.” The State further alleged that

Clayton violated this condition by “intentionally or knowingly threaten[ing]

[Denise], a member of the Defendant’s family, with imminent bodily injury and did

then and there use or exhibit a deadly weapon, to-wit: a firearm, during the

commission of said assault[.]” At trial, Denise testified that Clayton shattered her

driver’s window with the butt of a firearm as she sat in her car and that during the

incident, Clayton racked the firearm. Denise told the trial court that she was in fear

for her life, and she believed Clayton would have killed her if the gun worked

properly. Likewise, the responding officer corroborated this information when she

described Denise being very afraid, the shattered window, and glass inside the

12
vehicle. Clayton also admitted that he was angry over a money dispute, went to

Denise’s place of employment, and broke the window. Clayton disputed having a

gun and claimed he broke the window with his hand. The trial court in this case

explained that it believed Denise’s version of events. Although there was conflicting

testimony about whether Clayton had a gun, the trial court as the factfinder, was the

sole judge of the witnesses’ credibility and weight to give their testimony. See

Taylor, 604 S.W.2d at 179; Trevino, 218 S.W.3d at 240.

Viewing the evidence in the light most favorable to the trial court’s ruling, we

hold the evidence is sufficient to show by a preponderance of the evidence that

Clayton intentionally or knowingly threatened Denise, a member of his family, with

imminent bodily injury and exhibited a firearm or weapon during the commission of

the assault. See Tex. Penal Code Ann. §§ 1.07(a)(17), (46), 22.01(a)(2), 22.02(a)(2);

see also Hacker, 389 S.W.3d at 864–65; Rickels, 202 S.W.3d at 763–64. We also

hold that the trial court did not abuse its discretion in adjudicating guilt, where it

determined the greater weight of the credible evidence created a reasonable belief

that Clayton violated a condition of his community supervision. See Rickels, 202

S.W.3d at 763–64. We overrule issues one and two.

Modification of the Trial Court’s Judgment

Clayton notes that the trial court’s judgment indicates he pleaded “true” to

Count One in the State’s Motion to Revoke, but the record reveals he pleaded “not

13
true” to all allegations. We have the power to reform or modify a trial court’s

judgment to make the record speak the truth if we have the necessary information

before us to do so. See Tex. R. App. P. 43.2(b) (allowing appellate court to modify

trial court’s judgment and affirm as modified); Bigley v. State, 865 S.W.2d 26, 27

(Tex. Crim. App. 1993) (noting a court of appeals may modify the lower court’s

judgment by correcting or reforming it). Therefore, we modify the trial court’s

judgment to read “Not True” as reflected in Clayton’s plea to the allegations. See

Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27.

Conclusion

Having modified the judgment to reflect that Clayton pleaded “Not True” to

the allegations and having overruled Clayton’s issues, we affirm the judgment as

modified.

AFFIRMED AS MODIFIED.

W. SCOTT GOLEMON
Chief Justice

Submitted on September 12, 2025
Opinion Delivered January 7, 2026
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

14